Can a will be contested while the testator is still alive? Different states answer this question in varying ways. The traditional view is that a will contest is not “ripe” until a testator dies, because a will does not “speak” until death. In the past, courts have refused to hear pre-mortem will contests because to do so would mean expending resources on a claim that could be rendered moot by the testator’s subsequent amendment or revocation of the will.
Over the past several years, though, four states – Alaska, Arkansas, North Dakota and Ohio – have enacted statutes expressly allowing the pre-death validation of wills. Once a will is validated by the court, it can’t be contested after the testator’s death. Does this mark a nationwide trend toward allowing pre-mortem will contests?
Some states, New York included, have affirmatively rejected the idea in keeping with the traditional approach.
In a few states that don’t expressly allow pre-death validation, though, there does seem to be a subtle trend toward the recognition of certain pre-mortem claims concerning wills.
In California, for example, the traditional rule still stands, but an exception has been carved out that applies to substituted judgment proceedings. In a California substituted judgment proceeding, if a conservator can establish that a conservatee lacks testamentary capacity, that conservator can perform certain estate planning functions on behalf of the conservatee, including making a will. The conservator can then have the court validate the estate plan he or she has put in place for the conservatee. Once a probate court has validated a will as part of a substituted judgment proceeding, the issues decided in that proceeding are res judicata.
After the testator’s death, the pre-validated will can’t be contested.
In New Jersey, too, there seems to be a move toward allowing pre-death will contests, particularly where undue influence or lack of testamentary capacity are at issue.
It will be interesting to see how the states’ treatment of pre-mortem will litigation develops, and whether more states adopt the approach taken by Alaska, Arkansas, North Dakota and Ohio.
What do you think? Do you think states should allow pre-mortem contests of wills? Doing so might be a waste of judicial resources. However, on the other hand, it might allow greater certainty and peace-of-mind to the testator. Again, what do you think?
Stephen C. Hartnett, J.D., LL.M.
Associate Director of Education
American Academy of Estate Planning Attorneys, Inc.
6050 Santo Rd., Ste. 240
San Diego, CA 92124
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